In July, 2016, the FBI came to the conclusion that while
Hillary Clinton was serving as U.S. Secretary of State, she risked classified
information by using private computer servers for email and other purposes. The
FBI’s director explicitly stated that she had been extremely reckless. In legal
terms, that means gross negligence. At the time, a 99-year-old statute whereby
gross negligence is sufficient for a fine or imprisonment of up to ten years
was still on the books. Whether or not the person knew the actions were wrong
is not relevant to the statute, and thus the enforcement. So it was perplexing to a significant number
of Americans—including prosecutors and other lawyers—that the FBI director did
not recommend prosecution. Crucially, extremely reckless is the same as gross
negligence in legal terms.
The FBI director pointed out that the statute had not been
used as a basis for prosecution, and therefore
it was not fitting to apply the statute in 2016. Does this reasoning mean
that just because nobody has been prosecuted for lynching black Americans
since, say, 1916, a person who lynches a black man in 2016 should not be
prosecuted? I have simply increased the seriousness of the crime, but is being
extremely reckless with national security not also a serious crime? Is the American legal system prepared to say
that any statute not used in a prosecution is therefore unenforceable? Only statutes already utilized could be used
to prosecute people. No legal basis exists for such a view, and yet the FBI
director got away with it.
That Hillary Clinton’s husband, former President Bill
Clinton, boarded the Attorney General’s jet on the tarmac at Phoenix’s airport
to have a discussion with Loretta Lynch presumably about grandchildren just a
week before the FBI director’s announcement opens the door to the possibility
that the president who had appointed Lynch to a lower office made a deal so his
wife—who was running for president at the time—would not be prosecuted. The
FBI’s extremely reckless logic adds more support to that possibility. In short,
where there’s smoke, there’s usually fire.
At the very least, the appearance of corruption is noxious
and thus unacceptable. CPA firms look not only at material conflicts of
interest, but also the appearance thereof as being problematic. Such conflicts
are rather obvious and they are avoidable. Perhaps Bill and Hillary Clinton
were desperate to make a deal—appearance or not—because they knew she had been
reckless in going against the State Department’s policy; even freshmen
congressmen know not to put classified material on private email servers.
Hillary engaged in such traffic even when she was on hostile soil, such as
China and Russia.
What amazes me from this case is just how easy it was for
the FBI recommend no prosecution—given the extremely bad rationale rationally
speaking—and how easy had been for Bill Clinton and Loretta Lynch to get away
with the 30-minute discussion on her plane “on the grandchildren.” That the
American people take all this at face value quivers my faith in American
representative democracy. Put another way, if the players could get away with
corruption and, at the very least, incompetence in such a blatant case, other
players could get the message that the American system of justice is no match
for corrupt deals made by powerful people. Are the people really so naïve, or
are we simply apathetic? Either way, the message from this case is not good
regarding accountability.
Note: This essay is not meant to convey an opinion on the 2016 U.S. Presidential election, and more specifically on Hillary Clinton as a candidate. Rather, the question is whether an inter-institutional conflict of interest exists between the White House and the U.S. Department of Justice (i.e., whether that department is immune from political pressure).
Note: This essay is not meant to convey an opinion on the 2016 U.S. Presidential election, and more specifically on Hillary Clinton as a candidate. Rather, the question is whether an inter-institutional conflict of interest exists between the White House and the U.S. Department of Justice (i.e., whether that department is immune from political pressure).
